R v Spanos - [2007] SASC 409

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v SPANOS
[2007] SASC 409
Judgment of The Court of Criminal Appeal
(The Honourable Justice Debelle, The Honourable Justice Nyland and The Honourable Justice Layton)
22 November 2007
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - VERDICT
Special verdicts - appellant charged with possessing methylamphetamine for sale contrary to s 32(1)(e) of Controlled Substances Act 1984 - appellant admitted possession of methylamphetamine - only question for jury was whether drug was intended for sale - verdict of guilty could be reached by more than one route - jury could have found appellant intended to sell drug or that appellant held drug on behalf of another who intended to sell it - whether trial judge erred in not asking jury to answer specific questions or return special verdict to ascertain factual basis for conviction - appeal dismissed.
Controlled Substances Act 1984 s 32(1)(e) and s 32(3); Criminal Law Consolidation Act 1935 s 354(3), referred to.
Cheung v The Queen (2001) 209 CLR 1; Cunningham v Ryan (1919) 27 CLR 294; Otis Elevators Pty Ltd v Zitis (1986) 5 NSWLR 171; R v Brown and Brian [1949] VLR 177; R v Isaacs (1997) 41 NSWLR 374; Russell v Victorian Railways Commissioners [1948] VLR 118, applied.
Brown v Lizars (1905) 2 CLR 837; Jackson v The Queen (1976) 134 CLR 42; R v Cawthorne [1996] 2 Cr App R (S) 445, [1996] Crim LR 526; R v Clarke and Wilton [1959] VR 645; R v Lindner [1938] SASR 412; R v Low (1991) 57 A Crim R 8; R v Mills (1985) 17 A Crim R 411; R v Morton (1986) 42 SASR 571; R v Petroff (1980) 2 A Crim R 101; R v Solomon and Triumph [1984] 6 Cr App R (S) 120, [1984] Crim LR 433; R v Symons (1988) 142 LSJS 270; 32 A Crim R 370; Veen v The Queen (1979) 143 CLR 458, considered.

R v SPANOS
[2007] SASC 409
Court of Criminal Appeal: Debelle, Nyland and Layton JJ

DEBELLE J: The facts are recited in the reasons of Layton J. I turn directly to each of the grounds of appeal.
Ground 1
The first ground of appeal is that the trial judge erred in not asking the jury to answer specific questions or to return a special verdict in order to ascertain the factual basis for the conviction. Before addressing that ground, it is convenient to set out some general propositions relating to special verdicts and questions to juries in criminal trials in this State.
1As a general rule, the jury will be asked to do no more than return a general verdict.
2The jury has the right in all cases to return a special verdict but cannot be compelled to do so: 2 Hawkins’ Pleas of the Crown ch 47 s 3; Archbold, Criminal Pleading Evidence in Practice (2007) at para 4-465; Cunningham v Ryan (1919) 27 CLR 294 at 297 to 298.
3Generally speaking, a special verdict consists of findings made by a jury in answer to questions asked by the trial judge on particular issues of fact. In R v Brown and Brian [1949] VLR 177 at 183 Barry J defined a special verdict in these terms:
A special verdict is a finding by the jury of particular facts which raise a question of law, accompanied by a statement by the jury of their verdict in the light of the determination by the Court of the question of law.
That definition was adopted by Murphy J in Jackson v The Queen (1976) 134 CLR 42 at 53. A helpful discussion of general verdicts and special verdicts is contained in Otis Elevators Pty Ltd v Zitis (1986) 5 NSWLR 171. Special verdicts are recognised by s 354(3) of the Criminal Law Consolidation Act 1935 but, unlike some other States, there is no statutory régime in this State for taking special verdicts.
4The trial judge has a discretion to ask a jury to answer questions in addition to a general verdict, if the verdict is guilty: R v Clarkeand Wilton [1959] VR 645 at 654 to 655. See also Brown v Lizars (1905) 2 CLR 837 at 848; R v Lindner [1938] SASR 412 at 417. Answers to questions do not constitute a special verdict: Russell v Victorian Railways Commissioners [1948] VLR 118 at 131; R v Brown and Brian at 183.
It is apparent from this review that the trial judge had a discretion either to take a special verdict or to receive the general verdict and, if the verdict is guilty, to ask the jury questions as to the factual basis for the verdict. The judge has no obligation to ask the jury questions to determine the basis for the verdict. It is a matter entirely within the discretion of the trial judge whether to do so: Cunningham v Ryan at 298; R v Isaacs (1997) 41 NSWLR 374 at 379; R v Cawthorne [1996] 2 Cr App R (S) 445, [1996] Crim LR 526; R v Solomon and Triumph [1984] 6 Cr App R (S) 120, [1984] Crim LR 433.
The appellant did not apply to the judge to direct the jury to return a special verdict. Counsel for the appellant did no more than ask the trial judge whether he would take a general verdict or special verdict. The judge said he would take a general verdict and counsel for the appellant accepted that position. The judge did not err in failing to ask the jury to return a special verdict. It was a matter within his discretion and the usual course is to take a general verdict.
Although a trial judge has power to ask the jury to answer questions for the purpose of determining the factual basis of the verdict, the wisdom of the practice has been the subject of disagreement. The practice of New South Wales was reviewed by a specially constituted Court of Criminal Appeal in R v Isaacs and the court concluded at 379 that, at least in cases where a jury returned a verdict of manslaughter, it is desirable to refrain from asking the jury the factual basis for the verdict. The court listed seven considerations which had caused it to reach its conclusion:
First, to inform the jury, in the course of a summing-up, that they will later be invited to answer a question, or questions, as to the basis of the verdict, may distract them from their task of seeking unanimity on a general verdict, and provoke unnecessary confusion and disagreement as to the basis of the verdict.
Secondly, the jury’s response to any such question may be unclear. A response that indicated two grounds of decision might, depending upon the circumstances, indicate that the jury were unanimous on both grounds, or that some jurors adopted one ground, and the remainder adopted another. The response may create more uncertainty than previously existed.
Thirdly, there may be various possible views of the evidence in a case; different jurors may adopt different views and yet, consistently with their directions, reach a common verdict. To invite them to refine their verdict may be productive of mischief.
Fourthly, there is a substantial risk that the jury will be invited to make a decision upon which they have not been properly addressed by counsel. The present case provides a good example. Trial counsel never addressed the jury on provocation. Rarely would defence counsel’s address to a jury be expressed in terms appropriate to a plea in mitigation.
Fifthly, where there are two or more accused the jury might choose to answer the question with respect to one or more and not with respect to another or others. This would be invidious.
Sixthly, the judge may be embarrassed if he or she does not agree with the jury’s answer to the question.
Seventhly, where two or more partial defences are advanced, if the jury were to come to a conclusion favourable to an accused on the first defence they considered, they might not consider the other or others; if that occurred, an answer to that question might convey a false impression of having considered and rejected the other or others.
In Cheung v The Queen (2001) 209 CLR 1 at [18] Gleeson CJ, Gummow and Hayne JJ referred to the decision in Isaacs and expressed the view that there will be very few cases in which it is appropriate or useful to question the jury as to the basis for their verdict. Kirby J at [134] and [135] expressed a contrary view. Neither Gaudron J nor Callinan J commented on the issue. The English practice was reviewed in R v Solomon where the Court of Appeal expressed the view that there are grave dangers in asking juries how they have reached a particular verdict.
The appellant was charged with possessing methylamphetamine for sale contrary to s 32(1)(e) of the Controlled Substances Act 1984. It was alleged that he knowingly had methylamphetamine in his possession for the purpose of selling it to another person. The quantity of drugs found in possession of the appellant was more than the prescribed amount of two grams. If the jury found that the appellant knowingly had the drugs in his possession, there was a statutory presumption that he had them in his possession for the purpose of sale.
Although he had pleaded not guilty, the appellant admitted in cross-examination that he had the methylamphetamine in his possession but denied that it was for sale. The appellant’s evidence was that he knew the person to whom the drugs belonged and that he knew that the drugs were going to be sold. The appellant would not name the person to whom the drugs belonged, asserting that he had received threats if he did.
A person who has a proscribed drug in his possession may be guilty of a breach of s 32(1)(e) even if that person does not intend to sell the drug but is in possession of it knowing that it is intended for sale by another: R v Symons (1988) 142 LSJS 270 at 272-273, applying the reasoning in R v Morton (1986) 42 SASR 571 at 573. Given the admission by the appellant that he had methylamphetamine in his possession, the only question for the jury was whether it was intended for sale. The verdict of guilty could be reached by more than one route. The jury could have found:
·that the appellant himself intended to sell most or all of the drug;
·that the appellant intended to sell some of the drug himself and that he held the rest on behalf of another who intended to sell it; or
·that the appellant held all of the drug on behalf of another who intended to sell it.
It cannot be assumed that the members of the jury who found the appellant guilty held the same view as to the basis of the verdict of guilty. Had the trial judge asked the jury questions for the purpose of eliciting the basis of the verdict, he might have received different answers. In that event, the response would not have assisted the trial judge. It is an instance of the second of the considerations which influenced the court in Isaacs.
One of the reasons the judge gave for refusing to accede to the request of counsel for the appellant that he should ask the jury questions to disclose the basis of the verdict was there may be different routes by which individual jurors may decide to convict the appellant. He was entitled to exercise his discretion in that manner. Counsel for the appellant has not been able to demonstrate that the exercise of the discretion miscarried.
The appellant relied on a question which had been asked by the jury. The question was in these terms:
We request a reading of the transcript of all questions involving the accused’s knowledge of subsequent use of the drugs found.
It was contended that the question indicated the jury was directing its attention to the appellant’s version of the facts being correct. That is, I think, an optimistic submission. More importantly, it does not necessarily indicate that all members of the jury accepted that evidence nor does it suggest that all members of the jury had the same view as to the basis for a verdict of guilty.
For these reasons, the first ground of appeal fails.
Grounds 2 and 3
Given this conclusion, it is unnecessary to consider the second ground of appeal that the judge erred in deciding that it was too late to request a special verdict or ask a special question.
The third ground of appeal is that the accused should have been sentenced on the factual basis decided by the jury in their role as the tribunal fact. This ground too must fail. It fails because there was no obligation on the trial judge to ask questions to ascertain the factual basis on which the jury had returned its general verdict. It fails also because, in the absence of a special verdict or questions to a jury, the judge is the sole decider of facts relevant for the task of determining the sentence. The decision as to the guilt of an offence is for the jury but the decision as to the degree of culpability of the offender’s conduct, save to the extent to which it constitutes an element of the offence charged, is for the sentencing judge: Cheung v The Queen at [5]. The principles concerning the law and practice of sentencing were expressed in these terms in Isaacs at 377 to 378:
1.Where, following a trial by jury, a person has been convicted of a criminal offence, the power and responsibility of determining the punishment to be inflicted upon the offender rest with the judge, and not with the jury: R v Harris [1961] VR 236; see also Kingswell v The Queen (1958) CLR 264 at 283, per Mason J.
2.Subject to certain constraints, it is the duty of the judge to determine the facts relevant to sentencing. Some of these facts will have emerged in evidence at the trial; others may only emerge in the course of the sentencing proceedings. The fixing of an appropriate sentence ordinarily involves an exercise of judicial discretion, and it is for the judge to find the facts which are material to that exercise of discretion: Savvas v The Queen (1995) 183 CLR 1.
3.The primary constraint upon the power and duty of decision-making referred to above is that the view of the facts adopted by the judge for purposes of sentencing must be consistent with the verdict of the jury. This may product the result that, in a particular case, the view of the facts which the judge is obliged to take is different from the view which the judge would have taken if unconstrained by the verdict: cf Maxwell v The Queen (1995) 184 CLR 501. In the present case, for example, a trial judge might have considered that the facts supported a verdict of murder, not manslaughter; nevertheless, the judge would be obliged to sentence on the basis that the case was one of manslaughter. The fact that a judge may not agree with a jury’s verdict, and thus may be required to sentence on a basis different from the judge’s personal view of the case, is an inevitable consequence of the division of functions inherent in trial by jury.
4.A second constraint is that findings of fact made against an offender by a sentencing judge must be arrived at beyond reasonable doubt.
5. There is no general requirement that a sentencing judge must sentence an offender upon the basis of the view of the facts, consistent with the verdict, which is most favourable to the offender: R v Harris. However, the practical effect of 4 above, in a given case, may be that, because the judge is required to resolve any reasonable doubt in favour of the accused, then the judge will be obliged, for that reason, to sentence upon a view of the facts which his most favourable to the offender. When that occurs, it will be because of the application of the principle referred to in 4 to the facts of the particular case, and not because of some principle requiring sentencing on the basis of leniency: R v Lupoi (1984) 15 A Crim R 183 at 184.
Those principles were affirmed in Cheung v The Queen at [14] per Gleeson CJ, Gummow and Hayne JJ and at [170] per Callinan J.
The trial judge’s findings of fact were made in accordance with those principles. The findings of fact were entirely consistent with the verdict of the jury. The trial judge rejected the appellant’s evidence about the reasons for his possession of the methylamphetamine and found that the appellant intended to sell a significant quantity of it. The reasons of the trial judge are compelling. The trial judge found that the offence occurred against a background of commercial dealing. He expressed doubt about the appellant’s prospects of rehabilitation. The appellant did not challenge those conclusions. The sentence is not, in any respect, manifestly excessive but well within the sentencing discretion.
For these reasons, I would dismiss the appeal.
NYLAND J: I agree that the appeal should be dismissed for the reasons expressed by Layton J.
LAYTON J:
Introduction
This is an appeal against sentence.
On 28 March 2007, a jury in the District Court by a majority convicted the appellant of one count of Possessing Methylamphetamine for Sale, contrary to s 32(1)(e) of the Controlled Substances Act 1984 (SA) (“the Act”).
On 1 June 2007, the appellant was sentenced to four years’ imprisonment with a non-parole period of two years.
By permission, the appellant appeals against his sentence on the following grounds:
1. The Learned Trial Judge erred in not asking the jury to answer a special question or return a special verdict to ascertain the factual basis of any conviction; and
2.It was not “too late” to request a special verdict or ask a special question either prior to the jury returning their verdict or after receiving their verdict; and
3.The accused should have been sentenced on the factual basis decided by the jury in their role as the tribunal of fact.
The central issue on appeal concerned special verdicts, special questions and questions which should be directed to a jury by a Judge, the answers to which may impact on the sentencing process.
These issues arose in the course of a trial. The appellant pleaded not guilty to Possessing Methylamphetamine for Sale. Police had located the following in the appellant’s possession:
·A sock in the appellant’s underwear containing 30 separate bags of powder containing 6.87 grams of methylamphetamine.
·A bum bag containing a sunglasses case (Exhibit P4) and a Singapore Airlines toothbrush box (Exhibit P6). The sunglasses case contained, among other things, four bags of powder containing 0.26 grams of methylamphetamine and a piece of paper with contact details of various persons, with the word “credit” written on it (Exhibit P5). The Singapore Airlines toothbrush box contained four bags of powder containing 0.35 grams of methylamphetamine and a plastic spoon.
·A piece of paper in the appellant’s wallet with contact details on it (Exhibit P8) and two mobile phones on a lanyard around the appellant’s neck.
The appellant did not dispute that he was knowingly in possession of the methylamphetamine, but denied that it was for the purpose of sale. The prosecution case was that the appellant was a drug dealer and intended to sell most, if not all of the drugs in his possession.
The appellant gave evidence that he and others had consumed methylamphetamine and other drugs whilst partying at an Adelaide hotel (“the hotel”) over a three-day period. He admitted that the Singapore Airlines toothbrush box (Exhibit P6) and its contents were his. He also admitted that he purchased the methylamphetamine contained in the box over the weekend for his own personal use. However, the appellant denied that the rest of the drugs were his. The appellant explained that the additional drugs were in his possession because the person who rented the hotel room instructed him to make sure that the room was clean. The appellant said that it was when he was cleaning out the hotel room that he found the sunglasses case and its contents on the kitchen table, as well as a large amount of methylamphetamine in a bag in the bathroom which he put in a sock. According to the appellant, his intention was to return the drugs to its true owner, who was a participant at the party. The appellant gave evidence that if he did not return the drugs, he would have had to pay for them, and could have “got a bashing”. The appellant refused to identify the owner of the drugs, because of alleged threats. In cross-examination, the appellant revealed that he knew that the true owner of the drugs would sell them.

The appellant explained that the piece of paper found in his wallet, with contact details on it was his, but denied it was a record of the sale of drugs. The appellant also explained that he had two mobile phones with him because they both had limited credit and consequently decided to use both of them.
Section 32 of the Act – Possession for the purpose of sale
Section 32 of the Act relevantly provides as follows:
(1) A person must not knowingly—
…
(e) have such a drug or substance in his or her possession for the purpose of the sale, supply or administration of that drug or substance to another person (Emphasis added).
…
The quantity of the drugs found in the appellant’s possession was more than the prescribed amount of two grams. Thus, pursuant to s 32(3) of the Act, a presumption operated such that if the jury found that the appellant was knowingly in possession of the drugs then, in the absence of proof to the contrary, he was deemed to have the drugs in his possession for the purpose of sale.
Importantly in this trial, the prosecution did not have to show that the sale was to be by the appellant. It is well established that under s 32(1)(e) of the Act, criminal liability is determined by referring to the purpose of possession. In R v Symons,[1] King CJ, citing an earlier decision of the Court of Criminal Appeal in R v Morton,[2] held that s 32(1)(e):[3]
… does not require that that supply be supply by the accused. The purpose of possession, so far as the language of the paragraph goes, may be supply by the accused or supply by some other person.
[1] (1988) 32 A Crim R 370.
[2] (1986) 42 SASR 571, 573.
[3] (1988) 32 A Crim R 370, 372.
Therefore in the present case there were two potential pathways for finding that the appellant was guilty of the offence:
·First, a conviction based on the appellant’s possession of the drugs for sale by himself, and;
·Second, a conviction based on the appellant’s possession of the drugs for the true owner, whom he understood would sell the drugs to another person(s) in the future.
The Trial Judge’s Approach
The issue of special questions or a special verdict was first raised in discussion before the trial Judge prior to the addresses by counsel and the Judge’s summing up to the jury. Whilst the Crown indicated that it would be seeking a conviction on the basis of the appellant’s possession of the drugs for sale by himself, the appellant sought to address the jury on the basis that any conviction should be for possession for sale to a person by the true owner of the drugs. The discussion about potential questions to the jury and special verdicts included the following:
MR STEWART:   …I would ask whether your Honour had turned your mind to that issue and whether your Honour had a particular view at the present time.
HIS HONOUR:    I do and I was proposing to direct them that one of his answers yesterday would be sufficient for a finding of guilt but I would probably also ask the jury, if they were to find him guilty, whether they were doing so on the basis of an intention by him to sell or an intention that somebody else would sell. I haven't quite got a view about that yet.
MR STEWART:   As your Honour pleases. Would your Honour allow me a short break to take some instructions?
HIS HONOUR:     All right. Yes, certainly. I will just
After a brief adjournment, the following exchange took place:
MR STEWART:   Thank you for that time. I don't propose to make any submissions against the applicability of The Queen v Symons, however what would assist my address would be to have an understanding of what answer your Honour was concerned about and also how your Honour will deal either with a special verdict or a special question, it would seem, from the jury.
HIS HONOUR:    Sorry, you want to know whether I will, in fact, ask them to tell me if they find him guilty on what basis?
MR STEWART:   That's right, whether it's for sale by himself or in relation to having possession of it, - I presume this is what your Honour is thinking – knowing that the actual owner would have sold at least some of it at some time in the future.
HIS HONOUR:    I just haven't got a settled view about that. I may or may not do it that way. It doesn't help you a great deal, I know, but why do you need to know that?
MR STEWART:    To assist my address.
HIS HONOUR:    Ms David, do you have a view about that at all or should I, if it is a guilty verdict, just simply determine the matter for myself?
MS DAVID:Yes, your Honour has two options in my submission. The normal course of events is for the jury to render a general verdict and your Honour sentence on the facts as you find them proved, and I have made it clear that we would ask your Honour to sentence on the basis that any selling of the drug was to be done by Mr Spanos and, to that end, there was a background of selling by which we have sought to prove this charge.
HIS HONOUR:    But are you submitting that, as part of my directions, I should give a Symons-type direction?
MS DAVID:Yes. I propose to say to the jury 'The Crown case is this', however even if they accept the accused's version of events, put at its highest, he would still be guilty of this offence.
HIS HONOUR:    All right. Thank you for that. Mr Stewart, I won't ask the jury for any factual view. It will just be a general verdict I will seek from them and determine the matter for myself.
MR STEWART:    As your Honour pleases.
The above extract demonstrates that trial counsel for the appellant did not then oppose the course finally indicated by the trial Judge to seek a general verdict and not to ask further questions of the jury. Both counsel then gave their final addresses to the jury. Thereafter, the trial Judge summed up to the jury. After deliberating for less than two hours, the jury returned at 3:24 pm with a question that required a reading of the transcript “relating to all questions involving the accused’s knowledge of subsequent use of the drugs found”. After the transcript was read, the jury retired again at 3:35 pm. At 5:47 pm, the jury delivered its verdict. Three minutes prior to delivery, counsel for the appellant had made an application, apparently in the light of the earlier jury question, that if the jury were to return a verdict of guilty, the jury should be asked certain questions in order to find the basis for the conviction. Specifically, trial counsel for the appellant requested the trial Judge to put three alternative questions to the jury, namely:
(a)is the decision of guilt based on Mr Spanos possessing the drugs for sale by himself;
(b)possessing the drugs for the owner of them who would have sold them in the future; and
(c)between us, we have arrived at different ways to convict the accused.
The trial Judge refused the application as being “too late” in a practical sense and in any event, the jury had not been forewarned that they would be asked such questions. It is the trial Judge’s decision not to ask the jury these questions that the appellant submits is an appealable error.
Relevant Legal Principles
The law
The first issue to consider is the correct characterisation of what the appellant was actually seeking before the trial Judge, namely:
·Was it an application for special questions to be asked, which would lead to a special verdict instead of a general verdict; or
·Was it an application for questions to be directed to a jury after a general verdict?
Special questions and special verdicts
Unlike some other States, South Australia does not have specific legislative provisions governing special verdicts. Instead, s 354(3) of the Criminal Law Consolidation Act 1935 (SA) (“CLCA”) simply acknowledges that a jury may return a special verdict, and it is in a context of the powers of the Full Court on appeal. The sub-section provides:
354…
(3)Where on the conviction of the appellant the jury has found a special verdict and the Full Court considers that a wrong conclusion has been arrived at by the court before which the appellant has been convicted on the effect of that verdict, the Full Court may, instead of allowing the appeal, order such conclusion to be recorded as appears to the Court to be in law required by the verdict and pass such sentence in substitution for the sentence passed at the trial as may be warranted in law.
Therefore, in South Australia, common law principles are applicable. In relation to the use of “special questions” and “special verdicts”, the cases to which both parties have drawn to the Court’s attention appear to give rise to the following principles in a criminal trial context:
·An accused has a prima facie right to a general verdict, but a jury has the right to return either a general verdict or special verdict;[4]
·Whether by way of general verdict or special verdict, in criminal trials both types of verdict are directed to the ultimate issue, namely whether the accused is guilty or not guilty of the offence(s);[5]
·A special verdict, absent statutory provisions, arises in circumstances in which a jury, after making findings on specific facts, are uncertain as to whether such findings would, in law, amount to the offence.[6] A special verdict is thus a combination of jury findings accompanied by a verdict in the light of a determination made by the court as to the legal consequences of the findings.[7] In such a situation, the Judge directs a jury to return the relevant verdict, as a matter of the application of the law;
·There appears to be a difference between the application of special verdicts and special questions in criminal law, as distinct from civil law. In civil cases there is greater flexibility of their use than is the case in criminal law.[8] For example in defamation actions, questions may be directed to a jury to “elucidate subordinate questions of fact, the answers to which are component parts in the steps to be taken by the jury in performing its functions, on the way to reaching its general verdict”.[9] However, South Australia does not have civil jury trials;
·Whether a special verdict process applies is a question for the exercise of the trial Judge’s discretion. A court will rarely interfere with the exercise of that discretion and if it does, it should only be upon established grounds.[10]
[4]    Russell v The Victorian Railways Commissioner [1948] VLR 118, 121-2 (Gavan Duffy J), 130 (O’Bryan J); Cunningham v Ryan [1919] 27 CLR 294, 297 (Isaacs J).
[5]    R v Brown and Brian [1949] VLR 177, 179 (Lowe J) and cases cited therein.
[6]    R v Brown and Brian [1949] VLR 177, 183; Russell v The Victorian Railways Commissioner [1948] VLR 118, 130.
[7]    R v Brown and Brian [1949] VLR 177; Russell v The Victorian Railways Commissioner [1948] VLR 118, 130.
[8]    See Otis Elevators Pty Ltd v Zitis (1986) 5 NSWLR 171.
[9]    See Otis Elevators Pty Ltd v Zitis (1986) 5 NSWLR 171, 183.
[10] See Otis Elevators Pty Ltd v Zitis (1986) 5 NSWLR 171, 183.
In the present case, the questions sought to be addressed by the Judge to the jury did not seek a special verdict. On appeal, counsel for the appellant, Mr Stewart, conceded that at the trial, counsel requested the Judge to ask the jury questions after a general verdict was returned. This concession was clearly correct, a special verdict is an alternative to a general verdict and not an addition. These proposed questions were neither directed to the verdict, nor were they directed to the means by which the jury could reach a verdict. They were neither special questions prior to verdict, nor a special verdict. Instead, they were questions concerned with the later sentencing process, which at common law has traditionally been the province of the trial Judge.[11]
[11] Cheung v The Queen (2001) 290 CLR 1, 25.
As previously noted, s 354(3) of the CLCA does not suggest that the trial Judge is required to ask special questions or require the jury to return a special verdict after answering such questions, it simply recognises a common law situation.
Questions after a general verdict
Given that in the present case the appellant’s counsel sought questions to be asked after a general verdict had been returned, the discussion of this topic by the Court of Criminal Appeal of New South Wales’s in R v Isaacs[12] is pertinent. In that case, a court of five judges (Gleeson CJ, Mason P, Hunt CJ at CL, Simpson and Hidden JJ) considered the situation in which a trial Judge who, after a verdict of manslaughter was returned, raised with counsel the possibility that he might ask the jury a question in order to ascertain the basis upon which they reached their verdict. In the way in which the manslaughter issue had been left to the jury, there were two competing possibilities for such a verdict: first provocation, and second, homicide resulting from a dangerous and unlawful act.
[12] (1997) 41 NSWLR 374.
At trial, counsel for the accused argued against the asking of questions and the trial Judge did not pursue these questions. On appeal, fresh counsel for accused took a different stance after the Judge in sentencing concluded that the accused should be sentenced on the basis of manslaughter resulting from provocation rather than a dangerous and unlawful act. It was argued on appeal that the trial Judge erred in not asking questions of the jury and that as a consequence the sentence was manifestly excessive. The Court of Criminal Appeal undertook a detailed analysis of the case law relating to the appropriateness of asking questions of a jury following a verdict. The Court of Criminal Appeal articulated the following principles, which are now well established in New South Wales: [13]
1.   Where, following a trial by jury, a person has been convicted of a criminal offence, the power and responsibility of determining the punishment to be inflicted upon the offender rest with the judge, and not with the jury ...
2.   Subject to certain constraints, it is the duty of the judge to determine the facts relevant to sentencing. Some of these facts will have emerged in evidence at the trial; others may only emerge in the course of the sentencing proceedings ...
3.   The primary constraint upon the power and duty of decision-making referred to above is that the view of the facts adopted by the judge for purposes of sentencing must be consistent with the verdict of the jury ...
4.   A second constraint is that findings of fact made against an offender by a sentencing judge must be arrived at beyond reasonable doubt.
5.   There is no general requirement that a sentencing judge must sentence an offender upon the basis of the view of the facts, consistent with the verdict, which is most favourable to the offender. ... However, the practical effect of 4 above, in a given case, may be that, because the judge is required to resolve any reasonable doubt in favour of the accused, then the judge will be obliged, for that reason, to sentence upon a view of the facts which is most favourable to the offender ... [Footnotes omitted]
[13] (1997) 41 NSWLR 374, 377 – 8.
The majority of the High Court in Cheung v The Queen[14] endorsed these principles and I regard them as also applicable in South Australia.
[14] (2001) 209 CLR 1, 12 [14].
The Court of Criminal Appeal in Isaacs then went on to consider whether a practice had developed, particularly with regard to manslaughter, which would make it common practice for a judge to go behind a general verdict and inquire about a jury’s basis for a verdict for manslaughter. After referring to Veen v The Queen,[15] together with a number of later decisions,[16] the Court concluded that save in exceptional circumstances, trial judges should refrain from asking a jury the basis of a verdict of manslaughter for the following reasons:[17]
First, to inform the jury, in the course of a summing-up, that they will later be invited to answer a question, or questions, as to the basis of the verdict, may distract them from their task of seeking unanimity of a general verdict, and provoke unnecessary confusion and disagreement as to the basis of the verdict.
Secondly, the jury’s response to any such question may be unclear. A response that indicated two grounds of decision might, depending upon the circumstances, indicate that the jury were unanimous on both grounds, or that some jurors adopted one ground, and the remainder adopted another. The response may create more uncertainty than previously existed.
Thirdly, there may be various possible views of the evidence in a case; different jurors may adopt different views and yet, consistently with their directions, reach a common verdict. To invite them to refine their verdict may productive mischief.
Fourthly, there is a substantial risk that the jury will be invited to make a decision upon which they have not been properly addressed by counsel. The present case provides a good example. Trial counsel never addressed the jury on provocation. Rarely would defence counsel’s address to a jury be expressed in terms appropriate to a plea in mitigation.
Fifthly, where there are two or more accused the jury might choose to answer the question with respect to one or more and not with respect to another or others. This would be invidious.
Sixthly, the judge may be embarrassed if he or she does not agree with the jury’s answer to the question.
Seventhly, where two or more partial defences are advanced, if the jury were to come to a conclusion favourable to an accused on the first defence they considered, they might not consider the other or others; if that occurred, an answer to the question might convey a false impression of having considered and rejected the other or others.
[15] (1979) 143 CLR 458, 466.
[16] R v Low (1991) 57 A Crim R 8; R v Petroff (1980) 2 A Crim R 101, 134-9; R v Mills (1985) 17 A Crim R 411,416; R v Cawthorne [1996] 2 Cr App R (S) 445.
[17] (1997) 41 NSWLR 374, 379 - 80.
I respectfully agree with their analysis. I also note that the majority of High Court in Cheung v The Queen[18] agreed with the Court of Criminal Appeal’s decision that it is only in exceptional circumstances that a jury should be questioned as to the basis of their verdict. The majority (Gleeson CJ, Gummow and Hayne JJ) held:[19]
In the course of oral argument, there was discussion about whether the trial judge could or should have questioned the jury about the process of reasoning by which they came to their verdict. For the reasons given in Isaacs there will be very few cases in which it is appropriate or useful to do that. [Footnotes omitted]
[18] (2001) 209 CLR 1.
[19] (2001) 209 CLR 1, 14 [18].
Grounds 1 and 2
The appellant alleges that the trial Judge was in error when he decided that it was “too late” to ask the jury questions, after delivering their verdict, so as to ascertain the factual basis of their conviction.
Although R v Isaacs[20] is a case concerned with manslaughter and the present appeal relates to a drug offence, the Court’s reasoning in R v Isaacs,[21] outlining the practical difficulties in posing questions to a jury, is applicable to this case. It is only in very rare instances that a Court of Appeal will interfere with a trial Judge’s discretion not to pose questions to the jury. In Otis Elevators Pty Ltd v Zitis,[22] Kirby P held:[23]
Whether or not to leave questions to the jury in this way is a question for the exercise of the discretion of the trial judge. This Court will rarely interfere in the exercise of such a discretion and then only upon established grounds of principle. … Whether it will be useful in a particular case to leave a question of fact for the answer of the jury is a matter which the law reposes in the discretion of the judge conducting the trial.
[20] (1997) 41 NSWLR 374.
[21] (1997) 41 NSWLR 374.
[22] (1986) 5 NSWLR 171.
[23] (1986) 5 NSWLR 171, 183.
In the present case, the jury question did not necessarily suggest that their deliberations included choosing one or other of the two alternative paths for committing the offence. On the contrary, this is unlikely, given the trial Judge had made it clear in his summing up that there was no need for the jury to make such a distinction in order to be satisfied of an essential element of the offence, either path would suffice. Further, even if the question suggested that this was a jury consideration, that in itself did not require the Judge to ask the questions, such that a failure to do so would amount to an appealable error.

In addition, the practical difficulties in posing these questions to the jury, especially at such a late stage, included the fact that this case involved possession of three different amounts of methylamphetamine. Members of the jury may have either individually or collectively decided differently with regard to each of the three amounts. For example, some jurors may have considered that one or two of the amounts of methylamphetamine may have been for the appellant to sell and that another amount may have belonged to somebody else to sell. The variable paths for a jury to find guilt by this factor alone were considerable. Further, the jury had already deliberated for more than 4½ hours to reach a verdict which did not require this consideration. Thus, to send them back to answer further questions, at the end of that period of deliberating, in my view, would have been an unnecessary burden involving some complexity.
In addition, even if such questions had been asked and considered by the jury, their answers may have been either unclear or unproductive and of no assistance to the Judge in the sentencing process.
Bearing in mind the number of cases which come before this Court which involve possession of drugs in various forms, this case was not exceptional. Other cases may include multiple defendants, multiple amounts of drugs and multiple pieces of equipment. To have a requirement for a judge to ask such questions of a jury would give rise to unnecessary complexity, it would be mischievous, inappropriate and time-consuming.
Finally, as the Court of Appeal in Isaacs indicated, it is only in very rare instances will a court interfere with the trial Judge’s discretion not to pose questions to the jury. This is not such a case. For these reasons, the appellant has failed to make out Ground 1 and 2.
Ground 3
The appellant alleges that he should have been sentenced on the factual basis decided by the jury in their role as the tribunal of fact.
It is well established that a jury’s role is as the tribunal of facts. However, once the jury delivers its verdict, the role of the Judge is to sentence the accused. In Cheung v The Queen[24] Gleeson CJ, Gummow and Hayne JJ held that in sentencing, a Judge reviews:[25]
… the evidence for himself for the purpose of making findings on matters of fact which were necessary for sentencing, and which were not resolved by the jury’s verdict. Such a procedure does not involve any infringement of a right to a trial by jury. It involves the application of well-established principles as to the division of functions which are … an aspect of trial by jury.
[24] (2001) 209 CLR 1.
[25] (2001) 209 CLR 1, 25 [55].
I agree with the respondent’s submission that if the trial Judge had permitted questions to be asked of the jury, and the jury had unanimously returned with a verdict, the trial Judge would have been bound to sentence the appellant on the facts as found by the jury. However, in the present case, no questions were asked of the jury, and in that respect, the trial Judge applied well-established principles by looking at the evidence for himself and making the necessary findings of fact which were vital in sentencing the appellant. The appellant has not alleged that the Judge’s findings in sentencing were not open on the evidence. Consequently, there is no basis for Ground 3.
Conclusion
For these reasons none of the grounds of appeal have been made out. I would dismiss the appeal.